“  THE  CRISIS 


Of  THE 

?srrv  of  hav 

,7  M  AY1S1 


IN  CONSTITUTIONALISM 


BY 

DR.  DAVID  JAYNE  HILL 


FROM 


THE  NORTH  AMERICAN  REVIEW 


PRESENTED 

BY 

HON.  FRANK  B.  BRANDEGEE 

OF  CONNECTICUT 

IN  THE 


SENATE  OF  THE  UNITED  STATES 


DECEMBER  22,  1913 


'b 


227G9  12G29 


WASHINGTON 

1913 


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1  M 


THE  CRISIS  IN  CONSTITUTIONALISM, 

BY 

DR.  DAVID  JAYNE  HILL. 


Mr.  BRANDEGEE.  Mr.  President,  I  take  this  opportunity  to 
make  an  observation  upon  a  matter  which  I  regard  as  of  great 
importance,  a  matter  not  before  the  Senate  at  the  present  time 
in  any  legislative  way,  but  concerning  the  Constitution  of  this 
country  and  its  form  of  government  with  relation  to  the  proba¬ 
bilities  of  the  future  and  what  certain  existing  tendencies  may  * 
lead  to. 

I  am  going  to  read  a  short  article  appearing  in  the  North 
American  Review  for  this  month  by  David  Jayne  Hill,  entitled 
“  The  Crisis  in  Constitutionalism.”  The  North  American  Re¬ 
view  comments  upon  this  article  as  follows: 

“  FOR  CONSTITUTIONAL  CLUBS. 


“  The  foremost  American  diplomat  now  living — barring  Mr. 
Charles  Francis  Adams,  Mr.  Wayne  MacVeagli,  Mr.  Choate,  and 
Gen.  Porter  as  of  another  generation — is  undoubtedly  Dr.  David 
Jayne  Hill,  who  served  his  apprenticeship  under  Secretary  Hay 
and  won  the  respect  and  admiration  of  European  statesmen 
while  representing  his  country  abroad.  Just  as  Mr.  John  Bas¬ 
sett  Moore  and  Mr.  Adee  stand  preeminent  as  masters,  respec¬ 
tively,  of  international  law  and  the  technique  of  diplomacy,  so 
is  Dr.  Hill  without  a  peer  in  the  shaping  of  national  policies. 
It  is,  then,  a  matter  of  sincere  congratulation  that  he  has  re¬ 
turned  to  his  own  country  at  a  time  when  the  wisdom  derived 
from  thought  and  experience  is  sadly  needed. 

“  We  wish  that  every  thinking  American  might  read  the 
article  on  ‘  The  Crisis  of  Constitutionalism  ’  which  appears  in 
this  Review.  Dr.  Hill  writes,  of  course,  as  a  scholar  and 
philosopher  rather  than  as  a  diplomat,  but  the  marked  advan¬ 
tage  which  he  has  acquired,  from  long  and  thorough  training, 
227G9— 12629  3 


<V> 


* 


4 


over  others  who  have  treated  of  the  subject  becomes  quickly 
apparent  to  the  reader.  We  can  not  recall  in  recent  years  a 
setting  forth  of  the  basic,  principles  peculiar  to  our  Government 
so  incomplex  and  understandable,  nor,  better  yet,  so  convincing 
a  statement  of  the  reasons  for  their  more  rigid  application  and 
of  the  true  methods  of  accomplishment. 

“  ‘  What  is  our  political  future  to  be?  ’  is  the  question  with 
which  Dr.  Hill  finds  the  United  States  is  now  brought  face  to 
face.  That  the  answer  will  be  found  ultimately  in  the  reason 
and  conscience  of  the  people  he  has  no  doubt,  but  first,  he  de¬ 
clares  with  emphasis,  must  be  determined  the  lines  on  which 
the  answer  is  to  be  given.  ‘  What  we  need  at  present  is  not  so 
much  leaders  as  a  statement  of  the  principles  by  which  we 
should  be  led.’  And  here  the  choice  must  be  made  ‘  between 
experience  and  experiment;  between  arbitrary  decisions  and 
fundamental  principles;  in  a  word,  between  political  anarchy 
and  constitutional  government.’  If  any  corroboration  of  this 
declaration  were  needed,  it  can  be  found  readily  in  the  present 
tendency  of  legislation,  in  the  constant  expanding  of  the  powers 
of  government,  in  the  growth  of  paternalistic  sentiment,  in  the 
resentment  against  law  ‘  because  it  is  law,’  in  the.  encroachment 
upon  the  prerogatives  bestowed  upon  others,  in  the  development 
of  positive  dictation  or  ‘  bossism  ’  in  the  guise  of  ‘leadership,’ 
and  in  the  ready  assurance  of  those  holding  or  seeking  authority 
that  they  are,  indeed,  tribunes  of  the  people  rather  than  flip  ad¬ 
ministrative  officers  they  were  designed  by  the  Constitution  to 
be.  Dr.  Hill  might  well  have  enlarged,  and  may* yet,  we  trust, 
expand  his  thought  along  these  lines.  p 

“  Of  his  own  judgment  that  the  Constitution  itself  is  ‘  the 
one  overmastering  issue,’  Dr.  Hill  leaves  no  room  for  doubt. 
And  he  is  firmly  convinced  that  now,  of  all  times,  the  preserva¬ 
tion  of  constitutional  government  hangs  upon  ‘  cultivation  of 
respect  for  the  spirit’  of  our  fundamental  law.  To  this  end, 
speaking  as  a  practical  statesman,  he  advocates  definite  organi¬ 
zation.  ‘  If  wre  are  to  defend  the  Constitution,  we  who  believe 
in  it  must  act  together,’  Finally,  recalling  that  ‘  in  the  days  of 
our  Civil  War  much  aid  was  afforded  to  the  cause  of  preserving 
the  Union  by  the  formation  of  clubs  of  citizens,’  he  urges  the 
22769— 12G29 


ft 


inauguration  of  a  similar  movement,  feeling  certain  that  the 
opposition  sure  to  arise  would  at  least  ‘  furnish  surprising 
proofs  that  we  are  at  present  passing  through  a  crisis  of  con¬ 
stitutionalism  in  which  the  great  structure  of  liberty  and  justice 
erected  by  our  fathers  is  being  insidiously  undermined.’ 

“  The  suggestion  well  deserves  thoughtful  consideration.  It 
is  probably  not  too  much  to  say  that,  to  the  adoption  of  this 
method  many  years  ago  England  to-day  owes  her  national  ex¬ 
istence.  Surely,  at  any  rate,  to  the  influence  of  the  clubs  may 
safely  be  attributed  many  far-reaching  reforms  and  a  higher 
order  of  politics  generally.  If  so  successful  there,  why  should 
Div  Hill’s  suggestion  fail  here?  Is  it  not  worth  while  and 
worth  trying? 

“  We  invite  opinions  from  the  press.” 

“the  crisis  in  constitutionalism. 

“  Thoughtful  men  in  all  countries  of  the  world  are  united  in  f 
the  conviction  that  constitutional  government  embodies  the 
highest  ideal  for  the  regulation  of  human  affairs  ever  conceived 
by  man. 

“  With  regard  to  the  attainability  and  permanence  of  this 
ideal,  opinions  differ  widely.  Most  men  agree  in  the  belief 
that  certain  peoples  are  not  ripe  for  it.  Others  consider  it  neces¬ 
sary  to  combine  with  it  some  vestiges  of  absolutism,  as  a  means 
Of  rescuing  society  from  the  anarchy  that  would  follow  upon 
its  possible  failure.  Still  others  openly  oppose  it,  because,  for 
various  reasons,  it  is  their  personal  interest  to  do  so. 

“  The  dangers  to  constitutional  government,  however,  do  not  J 
arise  from  the  open  opposition  of  its  enemies,  for  in  the  field 
of  free  debate  it  is  abundantly  able  to  defend  itself.  Its  real 
foes — and  they  are  not  a  few — are  those  who  do  not  avowedly 
attack  or  resist  it,  but  who,  while  professing  to  be  its  friends 
and  its  advocates,  secretly  repudiate  or  intentionally  pervert 
its  fundamental  principles. 

“  In  contrast  with  the  political  absolutism  which  it  was  in¬ 
tended  to  destroy,  and  which  it  has  endeavored  to  supersede, 
constitutional  government  is  based  upon  the  principle  of  equal 
guaranties  for  the  rights  of  all  citizens,  without  distinction  of 
227G9— 12629 


6 


persons  or  classes,  under  the  protection  of  coordinate  and  dis¬ 
tributed  powers,  exercised  by  public  officers  freely  chosen  by 
the  people,  and  revocable  after  fixed  periods  of  office.  Recog¬ 
nizing  life,  personal  liberty,  and  property  as  elements  of  inalien¬ 
able  right,  constitutional  government  aims  to  guard  these  from 
every  form  of  violation. 

“  The  mere  statement  of  the  meaning  of  constitutional  govern¬ 
ment  plainly  indicates  who  are  its  natural  enemies.  These  in¬ 
clude  all  those  who,  in  any  form  whatever,  desire  to  make  the 
State  their  private  servant,  and  through  control  of  the  public 
powers  use  it  to  serve  their  own  personal  or  class  interests  at 
the  expense  of  others. 

“  The  division  of  men  into  friends  and  enemies  of  constitu¬ 
tional  government  must  be  based  upon  the  attitude  they  assume 
toward  its  fundamental  principle.  This  principle  being  the 
existence  of  equal  and  adequate  guaranties,  by  which  the  life, 
the  personal  liberty,  and  the  property  of  every  citizen  are  ren* 
dered  inviolate,  every  person  and  every  organization  that  aims 
by  means  of  exceptional  legislation  to  secure  advantages  to  the 
detriment  of  others  must  be  classed  as  an  enemy  of  constitu¬ 
tional  government,  which — although  not  a  guaranty  of  equal 
conditions,  which  is  impossible — is  essentially  a  guaranty  of 
equal  rights. 

“  The  means  by  which  the  founders  of  constitutional  govern¬ 
ment  intended  to  obtain  this  guaranty  were  threefold. 

“  First  of  all,  the  ‘  inalienable  rights  ’  of  all  citizens  were  to 
be  secured  by  a  fundamental  law  which  placed  them  beyond 
the  reach  of  unequal  legislation  or  executive  violence.  What 
the  advocates  of  constitutional  government  had  suffered  frofii 
was  the  exercise  of  absolute  and  arbitrary  authority.  This  they 
intended  to  end,  and  in  order  to  do  so  they  placed  certain  en¬ 
croachments  upon  personal  rights  beyond  the  power  of  legisla¬ 
tures  and  executives.  In  brief,  legislative  bodies  and  executive 
officers  were  themselves  made  subject  to  law ;  and  no  man  was 
to  be  judged  except  in  accordance  with  the  law.  Life,  liberty, 
and  property  were  not  to  be  taken  away  without  a  day  in  court, 
in  the  presence  of  responsible  authorities  acting  under  the 
obligations  of  equal  laws. 

22769—12629 


7 


‘  The  second  security  afforded  was  a  form  of  government  in 
which  public  powers  were  so  distributed  that  no  public  officer 
could  commit  an  act  of  oppression  without  rendering  himself 
responsible  for  his  action.  The  people,  through  their  representa¬ 
tives,  could  make  new  laws,  but  they  could  make  nc  laws  which 
encroached  upon  the  rights  already  sacredly  guarded  by  the 
fundamental  law.  The  executive,  when  necessary,  could  act, 
but  only  according  to  law.  The  judiciary  could  judge  if  the 
law  was  respected,  but  only  in  accordance  with  those  personal 
securities  which  the  fundamental  law  provided. 

“  Finally,  the  people,  standing  in  the  place  of  the  sovereign, 
and  exercising  sovereign  power,  did  what  no  other  sovereign  had 
ever  before  voluntarily  done  in  the  history  of  the  world — they 
freely  and  formally  renounced  the  power  to  impose  their  per¬ 
sonal  arbitrary  will  upon  the  organs  of  government  or  upon  one 
another.  They  confided  to  the  operation  of  the  system  they  had 
devised  and  created  the  legislative,  executive,  and  judicial  func¬ 
tions  necessary  to  the  application  of  justice,  subject  to  their 
approval  or  reprobation  by  means  already  provided  for  in  that 
system. 

“  Thus  absolutism  in  every  form  was  intended  to  be  extruded 
from  government,  which  aimed  to  be  a  system  of  just  laws  and 
principles  in  place  of  mere  arbitrary  will  actuated  by  caprice, 
prejudice,  malignity,  or  self-interest. 

“  It  is  easy  to  see  how  this  system  could  be  covertly  attacked 
by  those  who,  consciously  or  unconsciously,  were  inspired  by 
motives  for  subverting  it. 

“  The  first  method  of  attack  is  through  the  hasty  alteration 
q£  the  fundamental  law  itself.  Believing  in  the  approximate 
perfection  of  our  system,  the  people  of  the  United  States  have, 
in  general,  desired  to  maintain  the  stability  of  the  Constitution, 
and  so  far  it  has  been  subjected  to  very  little  change.  Being 
essentially  a  restriction  of  arbitrary  power,  it  presents  a  bar¬ 
rier  to  the  aims  of  those  who  seek  to  derive  private  advantage 
through  the  control  of  the  State.  As  long  as  it  remains  intact 
there  exists  a  legal  obstacle  to  depredation.  No  mere  dema¬ 
gogue  ever  has  loved,  or  ever  will  love,  the  Constitution,  for  it 
is  a  restraint  upon  personal  ambition  and  personal  interests. 

22769—12620 


8 


He  would  much  prefer  to  substitute  for  it  the  unrestrained 
‘  will  of  the  people,’  by  which  he  understands  assent  to  his  own 
proposals.  With  seductive  simplicity  he  blandly  asks,  ‘  What  is 
the  Constitution  between  friends?  ’ 

“  Undoubtedly,  any  inflexible  obstacle  to  a  transitory  popular 
impulse  can  at  times  be  made  to  appear  too  rigid,  but  it  is  pre¬ 
cisely  this  clear  and  definite  obstruction  to  impulsive  and  ill- 
considered  action  which  constitutional  guaranties  are  intended 
to  impose.  It  is  always  a  dangerous  moment  for  the  liberties  of 
a  people  when  it  is  proposed  to  substitute  for  the  deliberately 
established  reasonableness  of  a  constitutional  provision  the 
impromptu  and  uncontrolled  impulses  of  the  moment,  or  to  open 
the  way  without  serious  reflection  and  debate  for  mere  political 
experiments. 

“  Two  constitutional  changes  have  been  recently  urged  and 
passively  accepted.  The  election  of  United  States  Senators  by 
legislative  bodies  has  sometimes  been  attended  with  corruption, 
and  this  has  led  to  a  demand  for  popular  nominations  and 
elections.  In  order  to  lower  import  duties  an  income  tax — hith¬ 
erto  left  to  the  several  States,  which  can  levy  no  import  taxes— 
has  been  urged  as  a  means  of  supporting  the  Federal  Govern¬ 
ment.  To  accomplish  this  a  constitutional  change  was  neces¬ 
sary,  since  an  unequal  tax  was  prohibited,  and  an  equal  tax  was 
not  deemed  practicable.  It  is,  perhaps,  too  early  to  demonstrate 
the  results  of  these  changes,  but  it  remains  to  be  seen  how  the 
people,  if  they  can  not  succeed  in  choosing  trustworthy  legis¬ 
lators  from  among  their  own  immediate  neighbors,  will  be  able 
to  select  worthier  Senators  from  among  persons  whom  they 
know  only  by  reputation;  nor  is  it  certain  that  the  power  to 
impose  a  Federal  income  tax  without  any  kind  of  restriction 
may  not  eventually  become  the  instrument  of  mere  class  and 
sectional  legislation.  It  will  be  gratifying  if  these  experi¬ 
ments  result  in  an  elevation  of  political  morals  or  in  greater 
social  equity,  but  it  is  not  yet  certain  that  these  results  will 
follow. 

“A  second  point  of  attack  upon  the  Constitution  is  through 
the  encroachment  of  one  or  more  of  the  three  divisions  of  public 
power  upon  the  legitimate  domain  of  the  others.  The  American 
22769—12629 


9 


conception  of  government  lias  always  laid  stress  upon  tlie  bal¬ 
ance  of. tlie  public  powers,  which  is  intended  to  limit  the  ex¬ 
cesses  of  all.  When,  however,  we  consider  the  possible  effect 
of  the  power  concentrated  in  one  man  both  to  urge  and  to  veto 
new  laws,  backed  with  the  enormous  influence  of  Federal  patron¬ 
age,  the  employment  of  which  may  be  so  easily  concealed  behind 
the  mask  of  apparently  beneficent  legislation,  we  contemplate 
the  nearest  approach  to  absolute  power  now  to  be  found  in  any 
constitutional  government  in  the  world.  In  defense  of  this  cen¬ 
tralization  of  authority  it  may  be  said  that  a  President  of  the 
United  States  is  responsible  to  the  country,  and  particularly  to 
his  party,  for  the  fulfillment  of  promises  made  in  the  platform 
of  the  party  that  elected  him,  and  this  is  true;  but  Executive 
urgency  and  Executive  prohibition  have  not  always  been  exer¬ 
cised  exclusively  with  the  purpose  of  fulfilling  party  promises, 
but  sometimes  merely  upon  the  personal  initiative  of  the  Execu¬ 
tive  himself,  who  has  thereby  assumed  the  exercise  of  a  pre¬ 
rogative  which,  however  pleasing  it  may  be  to  those  who  profit 
by  its  results,  when  considered  from  a  constitutional  point  of 
view,  is  certainly  of  doubtful  propriety,  if  not  of  doubtful  legal¬ 
ity.  Fidelity  in  urging  the  fulfillment,  of  previously  made  party 
promises  and  personal  ballons  d’essai  sent  up  for  the  purpose  of 
securing  the  favor  of  the  majority,  without  regard  to  the  pre¬ 
viously  determined  policies  of  the  party,  are  two  entirely  dif¬ 
ferent  methods  of  official  procedure.  The  business  of  a  Presi¬ 
dent  is  to  execute  the  laws  and  urge  the  fulfillment  of  party 
pledges,  but  it  is  not  his  prerogative  to  revolutionize  the  Govern¬ 
ment. 

“  But  encroachments  upon  constitutional  limitations  by  the 
Executive  are  not  more  dangerous  than  those  of  a  legislative 
origin.  For  these  there  is  always  the  plausible  excuse  that 
they  spring  more  directly  from  the  expressed  will  of  the  peo¬ 
ple,  since  the  legislators  have  received  a  recent  mandate  from 
them.  It  is,  however,  a  perversion  of  reasoning  to  maintain 
that  their  mandate  includes  an  instruction  to  disregard  the 
spirit  of  the  Constitution,  or  to  strain  it  to  the  breaking  point. 
It  is  therefore  essential  that  the  judiciary  be  free,  pure,  and 
faithful  in  its  interpretation  of  the  fundamental  law.  It  is 
227G9 — 12G29 


10 


equally  important  that  it  should  have  the  confidence  and  sup¬ 
port  of  the  people.  Nothing  could  so  fatally  affect  the  founda¬ 
tions  of  constitutional  government  as  a  loss  of  confidence  on 
the  part  of  the  people  in  the  purity,  fidelity,  and  intelligence  of 
the  judiciary.  By  every  means  that  will  leave  it  free  and  re¬ 
sponsible  it  should  be  placed  and  kept  upon  the  highest  plane 
of  honor  and  authority,  for  it  is  by  its  essential  nature  the 
guardian  of  our  guaranties  of  liberty. 

“  There  is  a  third  and  a  far  more  insidious  form  of  attack 
upon  constitutional  government  which  should  not  escape  ob¬ 
servation.  It  is  the  disposition  to  withdraw  and  annul  that  act 
of  popular  renunciation  of  each  in  the  interest  of  all  upon 
which  the  success  of  constitutional  government  is  based.  It 
is  important  that  this  point  should  be  made  clear,  for  it  con¬ 
tains  the  chief  justification  for  speaking  of  a  ‘  crisis  ’  in  con¬ 
stitutionalism. 

“Attention  has  been  called  to  the  fact  that  the  third  step 
in  the  development  of  the  Constitution  of  the  United  States 
was  the  voluntary  surrender  of  arbitrary  power  by  the  sov¬ 
ereign  people.  This  was  not  an  abdication  of  power  by  the 
people  as  a  whole  in  the  interest  of  a  majority,  but  a  determi¬ 
nation  that  absolutism  in  every  form  should  be  abolished  alto¬ 
gether.  It  was  the  surrender  of  will  to  reason,  of  private 
interest  to  the  public  good,  of  the  individual  to  the  State  as  the 
institution  of  organized  justice. 

“  The  greatest  present  danger  to  constitutional  government 
is  the  revocation  of  this  splendid  sacrifice  of  personal  advantage 
to  the  common  well-being;  the  agreement  of  the  people  not  to 
attempt  an  act  of  conquest  upon  one  another,  but  to  live  on 
terms  of  equality  under  just  laws. 

“  It  is  worthy  of  observation  that  wherever  this  act  of  pa¬ 
triotism  has  been  refused  constitutional  government  has  proved 
an  abject  failure.  If  we  consider  the  revolutions  that  have 
stained  with  blood  and  ruined  the  economic  life  of  several  of 
our  sister  Republics  on  this  continent,  we  shall  find  ample  and 
striking  illustrations  of  this  assertion.  They,  like  ourselves, 
have  had  a  fundamental  law,  often  expressed  in  most  irre¬ 
proachable  language,  and  a  frame  of  government  in  which 
227G9— 12629 


11 


the  division  of  powers  is  theoretically  accepted.  In  fact,  how¬ 
ever,  these  elements  of  constitutional  organization  have  not 
been  treated  as  realities.  Personal  ambition,  conspiracy,  and 
revolution  have  defied  the  system,  and  frequently  destroyed  it. 
Instead  of  devoting  themselves  to  the  State  and  making  a 
religion  of  vital  patriotism — that  is,  of  consecration  to  the 
State  as  the  institution  of  order  and  justice — these  unfortunate 
brethren  have  attached  themselves  to  factions,  each  seeking  to 
dominate  by  force  the  others,  and  thus  creating  a  scene  of  con¬ 
stant  incertitude,  turmoil,  lawlessness,  and  rapine. 

“We  have  at  the  present  moment  a  startling  example. of  this 
assertion  of  arbitrary  will  and  repudiation  of  public  authority 
in  our  nearest  neighbor  to  the  South.  Everyone  who  personally 
knows  the  Mexican  statesmen  of  the  highest  type  appreciates 
their  learning,  their  culture,  and  their  sometimes  great  execu¬ 
tive  ability.  What  is  lacking  to  that  country?  It  is  the  spirit 
of  personal  renunciation  of  arbitrary  power  in  the  interest  of 
the  public  well-being.  Rich  in  natural  resources,  situated  in 
a  most  favorable  geographical  environment,  and  not  wanting 
in  capable  men,  Mexico  is  doomed  to  stagnation,  poverty,  and 
discredit  because  it  is  the  prey  of  rival  forces  within  the  State, 
each  claiming  the  right  to  rule,  each  determined  to  destroy  the 
others. 

“  Let  us  not  lose  the  lesson  of  this  impressive  illustration 
of  the  unwillingness  of  men  to  accept  the  authority  of  prin¬ 
ciples  because  we  ourselves  are  not  at  present  harassed  by 
banditti  and  visibly  divided  by  opposing  powers  within  the 
State.  It  is  opportune  for  us  to  ask  ourselves  why  we  are 
not  subjected  to  this  anarchy,  and  why  we  enjoy  a  high  degree 
of  peace,  order,  and  justice  in  our  own  Republic,  which  is  based 
on  the  same  fundamental  ideas  as  that  of  our  unfortunate 
neighbors? 

“  The  answrer  to  this  question  is  evident  to  every  thoughtful 
observer.  We  have  thus  far  been  able  to  maintain  respect  for 
our  Constitution  and  our  judiciary.  We  have,  in  the  interest  of 
the  public  peace,  renounced  the  primitive  right  of  personal  self- 
defense.  We  have  differences,  but  we  endeavor,  for  the  most 
part,  to  settle  them  by  an  appeal  to  the  law  and  to  the  courts. 

227G9 — 12G29 


LIBRARY' 

.■UNIVERSITY  OF  ILLINOIS 
AT  URBAN  A-  CHAMPAIGN 


12 


We  have  thus  far  maintained  the  renunciation  of  arbitrary 
power  which  has  made  our  Government  a  success  where 
others  have  failed,  and  we  have  had,  and  are  having,  our 
reward. 

“Will  this  condition  always  continue?  There  is  more  than 
one  sign  that  it  will  not  unless  we  are  on  our  guard.  The 
dangers  arising  from  the  first  and  second  forms  of  attack  on 
constitutional  government  are  not  unworthy  of  attention,  but 
they  are  insignificant  in  comparison  with  the  third ;  for  further 
alterations  can  not  be  made  in  the  Constitution  without  fresh 
consideration  by  the  people,  and  a  misuse  of  power  by  the  leg¬ 
islative  and  executive,  or  even  by  the  judicial,  authorities  is  at 
least  subject  to  correction.  But  the  third  form  of  attack  is  of  a 
different  nature.  It  results  from  a  social  transformation  that 
may  affect  constitutionalism  at  its  source  by  perverting  the 
minds  of  the  people. 

“  For  a  long  time  the  chief  danger  to  constitutionalism  in  our 
country  was  the  menace  of  conflict  between  the  States.  That 
peril  seems  now  to  have  passed,  for  their  interests  are  so  nearly 
identical  and  their  populations  are  so  homogeneous  that  a  di¬ 
vergence  of  purposes  sufficiently  wide  to  lead  to  armed  conflict 
is  altogether  improbable. 

“  But  there  is  another  source  of  antagonism  which  would 
have  an  equally  disastrous  effect  upon  constitutional  govern¬ 
ment,  the  possibility  of  which  is  not  entirely  excluded  from 
consideration. 

“  We  have  in  recent  years  developed  in  the  United  States  a 
spirit  of  class  antagonism  which  is  peculiarly  disquieting.  In 
stating  this  point  it  is  not  at  all  necessary  to  cast  the  blame  on 
any  particular  stratum  of  society,  and  a  careful  analysis  might 
distribute  responsibility  in  a  manner  that  would  not  be  welcome 
in  quite  opposite  quarters.  The  one  undeniable  fact  is  that  this 
antagonism  exists  and  that  it  has  been  stimulated  by  political 
ambitions  that  have  found  their  advantage  in  creating  unrest 
and  in  deepening  the  hostility  of  certain  conditions  of  life 
toward  others. 

“  The  peril  of  this  situation  is  that  it  does  not  consist  merely 
in  opposing  personal  sentiments  entertained  by  isolated  indi- 
22769—12629 


13 


viduals,  but  that  it  aims  to  control  the  State  by  massing  its 
forces  in  powerful  organizations  with  the  purpose  of  changing 
the  laws,  and  even  the  Constitution,  in  the  interest  of  special 
classes. 

“  Books  have  recently  been  written  with  the  endeavor  to 
make  it  appear  that  the  Constitution  of  the  United  States  is  a 
belated  eighteenth-century  construction,  devised  in  the  interest 
of  a  property-possessing  class,  and  at  present  an  anachronism. 
For  the  first  time  since  it  was  adopted  the  Constitution  has 
within  very  recent  years  been  treated  with  open  disrespect. 
What  is  the  reason  for  this  opposition?  It  is  that  the  Consti¬ 
tution  presents  an  obvious  barrier  to  the  designs  of  those  who 
oppose  it.  If  we  seek  the  actuating  principle  of  this  opposition, 
we  find  it  in  the  doctrine  that  the  unregulated  will  of  the  ma¬ 
jority  is  a  more  desirable  form  of  authority  than  deliberately 
accepted  principles  of  government  sanctioned  by  general  assent 
and  tried  and  tested  by  experience. 

“  Should  this  tendency  become  further  accentuated  by  combi¬ 
nations  of  power  able  eventually  to  control  the  State  in  their 
own  interest,  we  should  find  ourselves  in  a  position  not  dis¬ 
similar  from  that  in  which  Mexico  is  placed  to-day — divided 
into  hostile  factions,  one  class  plundered  by  another,  and  the 
country  utterly  powerless  to  defend  its  interests  or  maintain  its 
dignity  in  the  field  of  international  relations. 

“  The  means  of  preventing  this  calamity,  or  the  remedy  for 
it,  if  it  is  already  in  some  degree  upon  us,  is  evidently  a  deter¬ 
mination  on  the  part  of  the  people  that  arbitrary  power  in  1 
every  form  must  be  renounced;  that  life,  liberty,  and  property 
shall  still  enjoy  protection  against  any  form  of  absolutism  that 
may  be  asserted  within  the  State. 

“  To  apply  this  remedy  the  country  needs  two  things :  First, 
to  consider  seriously  the  drift  of  the  social  forces  now  operating 
among  us,  with  a  view  to  forming  a  clear  conception  of  the 
degree  in  which  we  are  adhering  to  or  departing  from  the 
spirit  of  conformity  to  just  and  equal  laws ;  and,  second,  an 
active  movement  on  the  part  of  thoughtful  citizens  to  arrest  an 
anticonstitutional  tendency. 

22769—12629 


4 


14 


“  In  considering  tlie  drift  of  the  social  forces  now  in  opera¬ 
tion,  one  is  struck  by  the  diminished  respect  for  law  simply 
because  it  is  law.  This  is,  no  doubt,  in  part  owing  to  the 
changed  conception  of  the  source  of  legal  authority.  Whan 
men  sincerely  believed  in  ‘  inalienable  rights  ’  and  conceived 
of  law  as  the  guardian  of  those  rights,  it  was  esteemed  worthy 
of  a  sentiment  of  reverence.  At  present  the  importation  of  a 
conception  of  law  as  the  decree  of  a  dominating  will,  without 
relation  to  fundamental  rights,  which  are  alleged  to  have  no 
demonstrable  existence,  has  made  it  difficult  to  respect  law  in 
and  for  itself.  If,  after  all,  it  is  merely  arbitrary,  if  it  pro¬ 
ceeds  from  no  moral  principle,  if,  in  short,  it  is  the  expression 
of  mere  will  and  not  of  reason,  it  is  difficult,  it  is  even  unrea¬ 
sonable,  to  demand  that  it  be  respected. 

“  It  is  necessary  in  the  life  of  every  nation  that  from  time  to 
time  it  be  called  upon  to  reflect  upon  the  principles  that  under¬ 
lie  its  existence.  The  present  generation  has  been  confronted 
with  no  great  national  crisis  that  has  called  for  such  reflection. 
The  shock  that  has  been  given  to  the  party  system  of  govern¬ 
ment  in  the  United  States  may  prove  to  be  such  a  crisis.  We 
have  suddenly  been  brought  face  to  face  with  the  question, 
‘What  is  our  political  future  to  be?'  It  is  for  the  reason  and 
the  conscience  of  the  people  to  answer,  but  it  remains  to  be 
determined  on  what  lines  the  answer  is  to  be  given. 

“  Naturally  in  moments  of  indecision  men  look  for  leaders, 
but  unless  they  look  also  for  principles  they  look  in  vain.  The 
choice  must  be  made  between  experience  and  experiment,  be¬ 
tween  arbitrary  decisions  and  fundamental  principles;  in  a 
word,  between  political  anarchy  and  constitutional  government. 

“  The  one  thing  most  certain  is  that  if  we  are  to  preserve 
and  justify  constitutional  government  we  must  be  ever  ready  to 
defend  it.  If  we  are  to  defend  it,  we  who  believe  in  it  must  act 
together.  To  many  minds  it  seems  at  this  moment  the  one 
overmastering  issue.  When  principles  have  been  settled  men 
have  always  been  found  to  render  them  effective.  What  we 
need  at  present  is  not  so  much  leaders  as  a  statement  of  the 
principles  by  which  we  should  be  led  and  which  we  should  then 
insist  upon  having  applied  in  practice.  In  seeking  for  these  we 
22769— 12G29 


\ 


15 

can  not  do  bettor  than  to  revert  to  the  great  doctrines  of  our 
fathers,  which,  in  the  midst  of  revolutions  on  every  side,  have 
brought  us  to  great  power  as  a  Nation,  and  which,  if  faithfully 
applied,  will  continue  to  give  us  great  prosperity  as  a  people. 

“  If  from  the  dissolution  of  party  ties,  which  has  brought 
home  to  us  the  problem  of  our  political  future,  we  are  able  to 
rally  about  the  one  rock  of  salvation,  the  rights  of  the  individ¬ 
ual  citizen  as  guaranteed  by  the  Constitution,  the  atmosphere 
will  clear.  We  shall  see  that  a  State  can  not  be  built  upon 
private  interests  of  any  kind,  and  that  our  prosperity  as  a  Re¬ 
public  consists  in  the  readiness  to  renounce  the  control  of  the 
State  for  our  own  advantage,  by  giving  to  each  individual  not 
only  full  liberty  to  exercise  and  develop  all  his  powers  in  his 
own  way,  but  protection  in  preserving  that  liberty  by  preventing 
the  public  powers  from  falling  under  the  domination  of  any  class 
or  combination  of  men  having  for  its  object  the  subjection  of 
others  to  their  private  will. 

“  In  the  days  of  our  Civil  War  much  aid  was  afforded  to  the 
cause  of  preserving  the  Union  by  the  formation  of  clubs  com¬ 
posed  of  citizens  who  perceived  in  that  movement  the  great  issue 
of  the  hour.  It  is  possible  that  the  time  has  come  when  a  simi¬ 
lar  interest  in  the  preservation  of  constitutional  government, 
through  the  cultivation  of  respect  for  the  spirit  of  the  Consti¬ 
tution,  may  be  desirable  and  even  necessary. 

“  Such  a  movement  would,  undoubtedly,  be  stoutly  opposed, 
but  the  intensity  of  the  opposition  and  the  comments  that  would 
attend  it  would,  perhaps,  furnish  surprising  proofs  that  we  are 
at  present  passing  through  a  crisis  of  constitutionalism  in  which 
the  great  structure  of  liberty  and  justice  erected  by  our  fathers 
is  being  insidiously  undermined,  not  in  the  interest  of  the  peo¬ 
ple,  of  whose  rights  it  is  the  only  guaranty,  but  in  the  interest 
of  private  powers  within  the  State,  which,  for  purposes  of  their 
own,  wish  to  dominate  it  and  employ  it  as  the  instrument  of 
their  designs. 

“  David  Jayne  Hill.” 


22769— I2G29 


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